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Sierra Club, Earthworks allowed to join Longmont oil/gas lawsuit

Judge says citizen groups can't add new issues

By Scott RochatLongmont Times-Call

Posted:
05/15/2013 01:23:29 PM MDT

Updated:
05/17/2013 07:58:51 AM MDT

The Sierra Club and Earthworks may join an oil and gas lawsuit involving the city of Longmont, but may not expand the issues under consideration, a Boulder County District Court judge said in one of a series of rulings Monday.

The suit, between Longmont and the Colorado Oil and Gas Conservation Commission, seeks to determine whether the city went too far in creating its new drilling regulations last July. Among other things, the rules forbid drilling in a residential area unless the city grants an exception.

Judge D.D. Mallard already had allowed the state's largest industry group, the Colorado Oil and Gas Association, to join or "intervene" in the suit. But for both COGA and the two environmental groups, the rulings carried the same condition -- stick to the existing issues in the case and don't bring in new ones.

"The court will not permit intervention by any party to unduly delay or prejudice the adjudication of the rights of the original parties," Mallard wrote in her ruling. Given that, she asked, "Do the citizen groups still wish to intervene if participation is limited to the issues as pled by the Commission and Longmont?"

The original request to intervene by the two environmental groups had stated that "the citizen groups also may raise defenses and arguments that the city may not raise."

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In Monday's rulings, Mallard also denied two motions to dismiss some of Longmont's counterclaims. The city had asked the court to find that it had the right to regulate oil and gas operations in Longmont as part of its home rule and land-use authority, while COGA insisted that the ordinance be struck down as illegal on its face. Mallard noted that the heart of the case was whether the state or city had the right of regulation, and that it would be premature to resolve all the issues in favor of one side or the other before hearing evidence.

The law itself, she said, did not prohibit Longmont from having any regulatory authority at all. "The court cannot find, as a matter of law, that the ordinance materially impedes or destroys the state interest," she said.

Longmont had also asked the court to rule that its "special exception" procedures were valid, a counterclaim that the COGCC asked to have dismissed. Under the city's ordinance, if the local rules "materially impede or destroy" the state's interest in developing oil and gas resources, an operator can apply for a waiver.

The COGCC argued that under law, the city didn't have the power to decide if there was a conflict. Again, Mallard ruled that it was too early to decide that question.

"The Court is quite sure it will be asked to determine whether the city has the authority to adjudicate operational conflicts in the course of this litigation," Mallard wrote. "However, that time has not yet come."

Mallard did dismiss one counterclaim at the request of COGA and the COGCC. Longmont had asked the court to find that anyone engaging in oil or gas operations in the city was subject to the ordinance. The commission and COGA argued, and the judge agreed, that no one was arguing about compliance, but about whether the ordinance was valid in the first place.

The judge also said she would wait until later to decide whether to empanel a jury in the case.

None of the rulings affect a separate lawsuit between COGA and Longmont over the city's anti-fracking charter amendment, approved by voters last November.

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